Your Petition Was Denied: Appeal, Motion, or Refile?

Start With the Clock

A denial notice starts a short deadline. An appeal or a motion to reopen or reconsider must generally be filed within 30 days of the decision (8 CFR 103.3(a)(2)(i); 8 CFR 103.5(a)(1)(i)). When the decision is mailed, 3 days are added (8 CFR 103.8(b)), so the practical window for a mailed denial is 33 calendar days.

How the days are counted:

Service by mail is complete on the date of mailing, not the date you receive the notice (8 CFR 103.8(b)).
The filing date is the day USCIS receives the Form I-290B at the correct filing location, not the day you mail it. Appeals mailed directly to the Administrative Appeals Office (AAO) are rejected (AAO Practice Manual, Ch. 3.7).
Every calendar day counts, including weekends and holidays. If the last day falls on a weekend or legal holiday, the deadline moves to the next business day (AAO Practice Manual, Ch. 3.7).

A different, shorter deadline applies to an appeal of a decision revoking an approved immigrant petition: 15 days, or 18 if mailed (AAO Practice Manual, Ch. 3.7).

Both appeals and motions are filed on Form I-290B, with the fee listed in the form instructions.

Who Can File

Only the "affected party" can appeal or file a motion. Under USCIS regulations, that is the petitioner, not the beneficiary (AAO Practice Manual, Ch. 3.7(a)).

EB-1A and NIW are usually self-petitions, so the person who filed is both petitioner and beneficiary and can appeal.
O-1 and L-1 petitions are filed by the employer or agent, so the petitioner files the appeal or motion.

Option 1: Appeal to the AAO

An appeal asks the AAO to review the decision.

De novo review. The AAO "exercises de novo review of all issues of fact, law, policy, and discretion." It looks at the record anew and may address issues the original decision did not (AAO Practice Manual, Ch. 3.4). That cuts both ways: the AAO can find new grounds for denial.
New evidence is accepted. The AAO accepts new evidence on appeal, and it "need not be new or previously unavailable." But you must have been eligible when the petition was filed, and remain eligible; achievements that came after filing cannot cure a petition that was not approvable when filed (AAO Practice Manual, Ch. 3.8(b)).
Identify the errors specifically. An appeal must specifically identify the erroneous conclusions of law or statements of fact. General assertions can lead to summary dismissal (AAO Practice Manual, Ch. 3.7(f)).
Supplemental brief. You may file a brief or evidence with the appeal or, if indicated on Form I-290B, within 30 days afterward, mailed directly to the AAO (AAO Practice Manual, Ch. 3.8).
The office that denied the case looks first. Within 45 days of receiving the appeal, that office may treat it as a motion and approve the case itself. If not, it forwards the appeal to the AAO (8 CFR 103.3(a)(2)(iii)-(iv)).

An AAO decision cannot itself be appealed; the next step after an unfavorable AAO decision is a motion to reopen or reconsider (AAO Practice Manual, Ch. 3.2(e)).

The standard of proof does not change on appeal: the petitioner must show eligibility by a preponderance of the evidence, meaning the claim is "more likely than not" true (AAO Practice Manual, Ch. 3.6).

Option 2: Motion to Reopen

A motion to reopen asks the office that made the decision to look again based on new facts. It "must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence" (8 CFR 103.5(a)(2)).

Best fit: the denial turned on a gap in the evidence that you can now fill with documentation.
Late filing: unlike a motion to reconsider, a late motion to reopen may be excused in USCIS's discretion if the delay "was reasonable and was beyond the control of the applicant or petitioner" (8 CFR 103.5(a)(1)(i)).
Abandonment denials (for example, for failing to respond to an RFE) cannot be appealed to the AAO, but can be the subject of a motion to reopen on specific grounds, such as showing that the response was timely or that the request went to the wrong address (8 CFR 103.5(a)(2); AAO Practice Manual, Ch. 3.2(b)).

Option 3: Motion to Reconsider

A motion to reconsider argues that the decision was legally wrong on the record as it stood. It must state the reasons and be supported by pertinent precedent decisions showing the decision "was based on an incorrect application of law or Service policy," and must establish that the decision was incorrect "based on the evidence of record at the time of the initial decision" (8 CFR 103.5(a)(3)).

Best fit: the officer misapplied the legal standard, for example by imposing a requirement the regulations do not contain, or by overlooking evidence already in the record.
No new evidence: a motion to reconsider is decided on the existing record.
No late filing: it must be filed within 30 days (8 CFR 103.5(a)(1)(i)).

A motion that does not meet these requirements is dismissed (8 CFR 103.5(a)(4)). You may file a combined motion to reopen and reconsider; each part is considered independently (AAO Practice Manual, Ch. 4.4).

Option 4: File a New Petition

Nothing prevents filing a new, stronger petition. For many petitioners, especially where the denial reflects gaps in the evidence rather than a legal error, a new filing that addresses the denial's reasoning can be the most practical path. It can also be filed with premium processing; see our guide to premium processing.

Trade-offs to weigh:

Priority date. Priority date retention applies to an approved I-140 (8 CFR 204.5(e)). A denied petition does not give you a priority date to carry forward, so a new EB-1A or NIW petition gets a new priority date. In categories with a backlog, that can matter; see our guide to the Visa Bulletin and priority dates.
Address the denial. A new petition should respond directly to the reasons the earlier one was denied, rather than refiling the same evidence.
Timing. A new petition can sometimes be filed while an appeal or motion is pending, but the strategy should be planned so the filings do not undercut each other.

Option 5: Federal Court

In some cases, a denial can be challenged in federal district court under the Administrative Procedure Act. Whether that is available, and whether it makes sense, depends on the type of case, the reasons for the denial, and the remedy you need. It is a separate decision to discuss with counsel.

What a Pending Appeal or Motion Does Not Do

Filing a motion, or a new petition, "does not stay the execution of any decision in a case or extend a previously set departure date" unless USCIS directs otherwise (8 CFR 103.5(a)(1)(iv)). For nonimmigrant workers, a denied extension or change of status can affect your ability to remain in the United States and to work, and a pending appeal or motion generally does not change that. If you are in the United States in a temporary status, the effect of a denial on your status is often the first question to answer.

How to Choose

The right path depends on why the case was denied. Reading the denial closely usually points the way:

The officer misread the law or ignored evidence in the record: a motion to reconsider, or an appeal.
The evidence had a gap you can now fill: a motion to reopen, an appeal with new evidence, or a new petition.
The denial raises several issues, or new grounds could surface on review: consider how de novo review at the AAO could cut both ways.
Time-sensitive status or work authorization: address the status consequences first; an appeal or motion may not protect them.

Many denials follow a request for evidence. If you are at that earlier stage, see our guide to responding to an RFE. For the substantive standards, see the 10 EB-1A criteria, the 8 O-1A criteria, and the Dhanasar test for NIW.

Key Takeaways

Appeals and motions are generally due within 30 days of the decision, or 33 days if it was mailed, counted from the mailing date and measured by when USCIS receives the filing.
The AAO reviews appeals de novo, accepts new evidence, and can raise new issues.
A motion to reopen presents new facts with evidence; a motion to reconsider argues legal error on the existing record.
A new petition is often an option, but a denied I-140 does not preserve a priority date.
A pending appeal or motion generally does not preserve status or work authorization.

Received a denial? Schedule a consultation to review the decision and your options before the deadline.

Sources and References

8 CFR 103.3: Denials, appeals, and precedent decisions
8 CFR 103.5: Motions to reopen or reconsider
8 CFR 103.8: Service of decisions and the 3-day mail rule
8 CFR 204.5: Priority dates for employment-based petitions
USCIS, AAO Practice Manual, Chapter 3: Appeals
USCIS, AAO Practice Manual, Chapter 4: Motions to Reopen and Reconsider
USCIS, Form I-290B, Notice of Appeal or Motion

This document provides general information only and does not constitute legal advice. Immigration law is complex and individualized. Outcomes depend on specific facts and circumstances. No results are guaranteed. Always consult with a qualified immigration attorney before making decisions about your immigration case.